SHRI D.K. BARUA Vs. THE REGIONAL PROVIDENT FUND COMMISSIONER AND OTHERS

JUDGEMENT

(1.) In this writ application under Articles 226 and 227 of the Constitution, the petitioner, D.K. Barua, has made a prayer for quashing the order dated the 6th of March, 1968 (Annexure 5) passed by the Regional Provident Fund Commissioner, Bihar, Patna, under Sec. 7A of the Employees Provident Funds Act, 1952 (hereinafter called the Act). The petitioner has further made a prayer for quashing the criminal proceeding, which has been instituted against the petitioner, and for a direction to the respondents to forbear from using coercive machinery against him for the realisation of any amount under the Act and the Scheme made thereunder. The petitioner is the proprietor of Messrs Barua's Restaurant. It is situated at P. Road, police station Bistupur, in the town of Jamshedpur. There is another restaurant called 'Telco Restaurant' located in the Telco Colony. According tot he petitioner, that restaurant, though owned by him, is being run by his son. It is alleged that Barua's Restaurant is separately registered under the Shops and Establishments Act and the number of employees is shown as 7. It is also alleged that it was separately registered under the Sales Tax Act and the sales tax was separately assessed. The establishment is also registered with the Jamshedpur Notified Area Committee as a licensee under the Prevention of Food Adulteration Act for dealing in foodstuff. It is further alleged by the petitioner as follows: - -

(2.) On the aforesaid allegations, the petitioner has filed this application praying for quashing the order (Annexure 5) and for other reliefs.

(3.) In the counter -affidavit filed on behalf of the respondents it is stated that the establishment was brought under the purview of the Act and the Scheme framed thereunder on the basis of a report dated the 17th of April, 1965 (Annexure A) submitted by the establishment itself, under the signature of its Manager, Shri A.K. Dutta. That report was received in the office of the Regional Provident Fund Commissioner, Bihar, along with a forwarding letter bearing no. 154 dated the 22nd of April, 1965 from the then Area Provident Fund Inspector, Shri H.C. Mahapatra. Thereupon a letter (Annexure C) dated the 11th of May, 1965 was issued to the management to comply with the provisions of the Scheme from the 10th of April, 1965. As stated in the counter -affidavit, the report submitted by the management reveals that on the 10th of April, 1965 there were 7 employees in the main establishment, i.e., Barua's Restaurant and 13 employees in its Telco Branch known as Telco Restaurant, and the total number of employees reached 20 to attract the provisions of the Act and the Scheme framed thereunder. As stated in the counter -affidavit records were ultimately produced for the enquiry fixed on the 2nd of March, 1968 and thereafter the impugned order under Sec. 7A of the Act was passed. It is said that in course of the enquiry it was found that the establishment had employed 20 employees in the month of August, 1965 and not in the month of March, 1965 and, therefore, it was liable to comply with the provisions of the Act with effect from the month of August, 1965. In Paragraph 15 of the counter -affidavit, it is stated that the question of applicability of the Act to the establishment was, among other things, examined in greater details on the basis of the books of account, etc., produced before the Regional Provident Fund Commissioner, respondent no. 1, on the 2nd of March, 1968 and it was found that the establishment employed 20 employees in August, 1965 and, therefore, the provisions of the Act, and the Scheme framed thereunder were made applicable from August, 1965, instead of May, 1965 as notified earlier in the coverage letter. It has been further stated that the criminal proceedings started against the petitioner are legal and valid; that the petitioner's establishment is an establishment within the meaning of Sec. (3)(b) of the Act; that the applicability of the Act to the petitioner's establishment was examined before determining the liability under Sec. 7A of the Act; and that the subsequent legal action was taken under the provisions of Sec. 14 of the Act read with Paragraph 76 of the Scheme.